A U.S. District Court Judge for the Southern District of Texas, McAllen Division, recently put an end to Plaintiff's contumacious delays involving discovery requests, designation of experts, depositions and ultimately, a failure to cooperate with an appraisal invoked by Plaintiff after a year of litigation.  In Heller v. Ace European Group Limited, No. 7:12-CV-422 (S.D.Tex.- McAllen Div., August 8, 2014), a hailstorm case from The Valley, the plaintiff litigated the matter for almost a year and then invoked appraisal on July 1, 2013.  But, Plaintiff failed to designate an appraiser until January 24, 2014.  The two appraisers contacted each other in late January and met on February 26, 2014 to evaluate the property. For the next four months, the insurer's appraiser repeatedly tried to contact the insured's appraiser by phone and email without success.  The insurer then moved to dismiss the lawsuit due to the long delays in appraisal.

Judge Alvarez carefully considered the excuses offered by Plaintiff's appraiser who attempted to explain his silence as resulting from an "unavoidably heavy workload" and arguing that “appraisal often takes up to 6 months to complete."  The court reviewed the reasons offered which ranged from out of town work, a full time job with Alpha Building Corp., his appraisal work for his own business Arroyo Construction & Maintenance, a family tragedy, and a family vacation during the relevant time frame.  The Court observed the reasons offered, however, reflect "attention to personal and unrelated business matters, rather than an unavoidable backup."  The Court then noted that dismissal with prejudice is an extreme sanction that requires two elements: 1) "a clear record of delay or contumacious conduct, and 2) lesser sanctions would not serve the best interests of justice."  The Court then concluded that both elements were present in this case.

First, the Court noted a "familiar pattern of delay" involving discovery requests, designation of experts, depositions and, ultimately, a failure to cooperate with an appraisal invoked by Plaintiff. And second, the Court observed multiple other escalating sanctions including $500 for failing to comply with discovery, $100 for ignoring the Court's motion practice requirements, the Court's denial of a Plaintiff's motion to compel a deposition, the Court’s denial of a second motion to extend their expert deadline, the Court ordering plaintiff to pay a $14,000 sanction for discovery noncooperation and, Plaintiff’s delay in payment of the sanction.  Exasperated, the Court warned that further delays would result in further sanctions which could include dismissal.  The Court then found the appraisal delay was intentional and Defendants were prejudiced "since the passage of time only further diminishes the appraisers' ability to make an accurate assessment of the cause of damage, and since an extended process of appraisal costs more than a timely process."   

Accordingly, the Court held:

Time and again, Plaintiff has delayed this case.  Time and again, the Court has sanctioned Plaintiff monetarily and otherwise.  Plaintiff may not tire of this pattern, but the Court has.  Imposing yet higher monetary sanctions would be neither practical nor effective, and allowing Plaintiff to continue in his old ways would make a mockery of the Court's warnings.  Accordingly, the Court DISMISSES Plaintiff's remaining claim.

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